Risk of libel in freedom of the press
Patrick Guntensperger Business consultant Jakarta ttpguntensperger@hotmail.com
One of the cornerstones of a democratic society is a free press. Freedom of expression is therefore, one of the very first freedoms to be curtailed when a democracy is being undermined, either as a prelude to a coup d'etat or as an early step in the process of gradual tyrannization.
Those of us in the business of the dissemination and exchange of ideas tend to support the more extreme versions of press freedom while those concerned with law and order and the security of the existing regime lean towards a more restrictive interpretation (assuming they support the concept at all). Not surprisingly, this issue is one that Indonesia is grappling with during the exhilarating process of democratization. It is right and just that freedom of the press should be a contentious issue; there are compromises that must be made in implementing it and every compromise represents a cost.
On the one hand, few thoughtful people would support the concept of absolute freedom of expression. The hoary example of shouting "Fire!" in a crowded theater comes instantly to mind. Most of us would agree that there ought to be limits on our freedom of expression for the simple safety of the public.
Another abuse of the freedom of expression would be to make a false statement of fact that others could be expected to rely upon when making a decision to purchase something. If an automobile manufacturer were to claim his car came equipped with an airbag and the purchaser found out after an accident that the claim was false, surely that would be an abuse of free expression.
It would probably be fair to say that most Indonesians would consider it an abuse of free expression if they were to buy a food product advertised as being consistent with Islamic dietary law only to find out after having consumed it that it was made from pork. One cannot simply be free to say whatever one wishes regardless of the consequences.
On the other hand, no believer in the principles of liberty or democracy would accept that those principles are consistent with the arrest and fining or incarceration of a journalist who publishes an opinion critical of an incumbent leader. True believers in the fundamental principles of democracy would agree that the press should be free to criticize, object to, exhort, rail against and recommend alternatives to the current power structure. Government control over the press is not consistent with democracy. Unless the truth has an outlet for expression, the people would be insufficiently informed to be able to exercise their democratic right to decide among the candidates at the polls.
But therein lies the key to helping us find a comfortable spot between the rock of totalitarianism and the hard place of absolute freedom. Truth.
If truth is considered by the courts to be the ultimate test of all claims of fact, we have a starting point for laying a foundation of laws governing freedom of speech and, by extension, the press.
Libel is the publication of information or statements damaging to a person's reputation. Such is a dictionary definition. A reasonable libel law, however, permits one absolute defense..that the statement was the truth.
A journalist therefore would be within his rights to report that a politician is corrupt, if he was able to support the accusation with objective evidence. On the other hand, that official could reasonably file a libel suit if there was no truth to the statement. A civil court could then determine the level of damage caused, if any, by an accusation that was determined to be groundless and award appropriate damages to the victim of the libel, including punitive damages, if the court was of the opinion that there was sufficient malice to justify punishment as well as compensation.
The upshot of these measures and countermeasures is this: In order to be considered libelous and deserving of judicial censure and punishment, a published statement must actually be damaging to a person's reputation (merely ruffling a VIP's sensitive feathers isn't sufficient), it must be false and it must have been maliciously intended.
If the statement's publication meets all these conditions, civil measure may be brought to bear. And significantly, contrary to the instinctive beliefs of politicians, it ought to b e harder to win a libel case against someone who has commented on a public figure than someone who is accused of libeling a private individual. Being a public figure is a choice, and choosing public life entails choosing a higher degree of scrutiny and a higher standard of behavior. No one is forced to run for public office.
There is no need for the criminal justice system to step in when what is at issue is a statement concerning the character of a public official. If a journalist merely sates that, in his opinion, a public official is objectionable, but makes no factual claims, the official in question simply has to accept that an opinion is being expressed. He is, of course, free to disagree with it and express a contrary opinion. That is the nature of public life. And that is the nature of freedom.